Facts of the case

Question

Media for Thompson v. Keohane

I'm saying we can only do it one way, and you are saying, oh, you could do it another way.

Julie R. O'Sullivan:

In habeas cases, Your Honor, under 2254(d) and 2254 generally.

Isn't that where you and I are disagreeing here?

--I take it you recognize that in some cases reasonableness is for the trier, whether judge or jury, the subject is clearly erroneous, but in other cases, reasonableness requires policing by an appellate forum.

Cynthia M. Hora:

--I believe so.

Julie R. O'Sullivan:

That's correct, Your Honor.

Yes.

And the standard by which we can distinguish the one from the other is that in the second category what is the need for special policing?

Cynthia M. Hora:

I--

Is there some way we can tell well, we can tolerate a lot of inconsistency, even, with different juries coming out differently on reasonable--

It seems to me, counsel, that when you were suggesting that fundamental constitutional rights are subject to de novo review in the courts, or some plenary review, that there was an implicit admission, or an implicit premise that control by the courts is better maintained that way, and that it is more important to have control, and it seems to me that that is what Justice Souter is suggesting should apply in Miranda cases, even if we don't classify that as a fundamental right.

Julie R. O'Sullivan:

Mm-hmm.

Cynthia M. Hora:

--I would... I don't think it rises to the same level of voluntariness, or some of the other issues that the Court treats de novo--

--but why can't we tolerate the same uncertainty about in custody, so one group would find not in custody, another part would find in custody, they're both reasonable, so appellate court would leave them alone?

Or ineffective assistance of counsel is another one where there would be de novo review, is that right?

What's the difference?

Cynthia M. Hora:

--That's correct.

Julie R. O'Sullivan:

Your Honor, in the negligence context again you're asking the community to decide, looking backward, whether certain conduct should be sanctioned, whether somebody should be made liable for that conduct based on community standards.

So there are some things that trigger de novo review... voluntariness, ineffective assistance of counsel... other things that don't, and you're saying Miranda falls on the side with jury bias and not on the side with voluntariness or ineffective assistance.

Julie R. O'Sullivan:

We're not asking that those standards be imposed Nationwide.

Why, if the object is that Miranda is not just some words that are spoken sometimes but words that must be spoken at a certain time, doesn't the Federal court need to have control over what that time is?

Julie R. O'Sullivan:

A jury in Illinois... we're encouraging a jury in Illinois to apply a different standard than a jury in Maine.

Cynthia M. Hora:

The Federal court, though, can do that by articulating the standard.

Julie R. O'Sullivan:

By contrast, in this situation, what we have is, we have a Federal quasi-constitutional standard.

Cynthia M. Hora:

The Federal courts, by having fact-bound decisions--

Julie R. O'Sullivan:

We are asking courts to not only define what that standard means by applying the standard in the context of each particular case, but we're also asking the appellate court to define a uniform, at least consistent body of law regarding the meaning of that standard.

Well, what is the standard, other than in-custody?

Julie R. O'Sullivan:

It's particularly important because in this context, just as in the Fourth Amendment context, we're asking law enforcement to conform their conduct to those rules.

Who fleshes out what in-custody means by saying, certain circumstances are not in-custody, certain circumstances are, and how can the Court do that job without passing... getting a body of cases that it can review and then narrowing the range of choice that the police will have?